Supreme Court appears to support a warrantless police search

David G. Savage

WASHINGTON — In a case that could narrow legal protections against police searches, a majority of Supreme Court justices sounded ready Wednesday to reject an appeal from an imprisoned Los Angeles gang member who contended that after he objected to a search and was then taken away under arrest, police unconstitutionally entered his apartment.

Justices appeared to agree with attorneys for the Los Angeles Police Department, who defended the search as legal because the gang member, Walter Fernandez, was not present and his girlfriend gave police permission to enter their home.

Fernandez's attorney, Stanford law professor Jeffrey Fisher, said the case would set a dangerous precedent by allowing police to circumvent laws requiring search warrants. Except in emergencies, the Constitution's 4th Amendment requires police to obtain a search warrant to enter and look through a home, he argued, and that's what Los Angeles police should have done.

"In Los Angeles County, it takes 15 minutes on average to get a warrant," he told the court. He noted that his client had strongly objected to the police entering his apartment before he was handcuffed and taken away.

But Fisher ran into skeptical questioning. Several justices focused on the fact that Fernandez's girlfriend had agreed to allow the officers to search the premises. There, they found a knife, gun and gang paraphernalia linking him to a robbery earlier that day. Based on the evidence, Fernandez was sent to prison for 14 years.

"It's her house too," Justice Stephen G. Breyer said. "Can she never invite the policeman in?"

"The police can simply get a warrant," Fisher replied.

But Chief Justice John G. Roberts Jr. said the police may find obtaining consent from a tenant "simpler, faster and less burdensome than applying for a warrant."

Only Justice Sonia Sotomayor strongly argued for requiring police to obtain a warrant from a magistrate before searching a home, at one point interrupting an Obama administration attorney who was defending the LAPD's actions.

"How about a clear answer?" Sotomayor said. "Get a warrant! When you have probable cause to believe a crime has been committed … you've got to secure the premises and get a warrant. I don't know why that's so difficult for police officers to understand."

She and other justices worried that police in the future might use an arrest as a pretext to remove a suspect from his or her home to conduct a warrantless search.

The case of Fernandez vs. California began in October 2009 when police responded to reports of a street robbery near Venice Boulevard and Magnolia Avenue. An officer saw a man who resembled the suspect running upstairs to a second-floor apartment. When officers knocked, a woman opened the door. She was bruised and looked frightened. They spotted Fernandez, who they believed resembled the suspect, and took him into custody.

Officers returned within an hour and, with the woman's permission, searched the apartment. The California courts upheld Fernandez's conviction, so he appealed to the U.S. Supreme Court and cited a 2006 ruling in Georgia vs. Randolph.

In that case, the court decided — in an opinion by now-retired Justice David H. Souter — that police had violated the rights of a Georgia man when they entered his home and searched based on his wife's consent. Because Scott Randolph, her husband, had stood in the door and objected, the court ruled that the police should have honored his objection.

If the justices agree that the Fernandez search was legal, it could settle a dispute bubbling up in lower courts nationwide over whether a consent to search provided by one resident of a private home is enough to override an objection from a spouse or roommate, if the objecting party is not present.

California Deputy Atty. Gen. Louis Karlin argued that Fernandez could not rely on that precedent because he was not "physically present" when the police returned. "When he's gone, she really is in charge," he said.

Sotomayor sounded resigned to a decision that would narrow the court's previous ruling. "So there's nothing left to Randolph," she said. "Police just remove the person."

Separately, the court heard a Florida case that could pose a major threat to union organizing campaigns.

Since 1947, it has been a crime under federal labor law for an employer to offer "any money or other thing of value" to a union or a union official. The aim was to prevent corruption and bribery.

But last year, a federal appeals court said a so-called neutrality agreement between a casino and a union could be illegal because it is a "thing of value." The union had agreed to support a state initiative to expand slot machines in Florida, and the casino agreed to permit employees to form a union by "card check": that is, if a majority of workers in the bargaining unit signed a card that they wanted to unionize, no election would be required.

The court heard the union's appeal in Unite Here Local 355 vs. Mulhall.

A union lawyer and a Justice Department attorney urged the court to rule that neutrality agreements are not akin to illegal bribes. And most of the justices appeared to agree. It would "create a mess" if agreements to permit organizing votes were deemed illegal, Breyer said.